CC LegalThe National Coalition for Sexual Freedom is a national organization committed to creating a political, legal, and social environment in the United States that advances equal rights of consenting adults who practice forms of alternative sexual expression. NCSF is primarily focused on the rights of consenting adults in the SM-leather-fetish, swing, and polyamory communities, who often face discrimination because of their sexual expression.https://ncsfreedom.org
Tue, 31 Mar 2015 22:17:19 +0000en-gbUnited States, Appellee V. Mileshttps://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/715-united-states-appellee-v-miles.html
https://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/715-united-states-appellee-v-miles.htmlDecember 4, 2014 - Motion on behalf of the National Coalition for Sexual Freedom for leave to file a brief as amicus curiae in support of appellant's petitioin for grant of review. Clict to open the filed motion March 26, 2014 – Washington DC. – NCSF has filed an amicus brief in a military case involving a marine who engaged in a consensual threesome and because of that was convicted of adultery, attempted consensual sodomy and indecent conduct, a "crime" based solely on undefined sexual conduct inconsistent with "common propriety." Click to open Subject Index, Table of Authorities & Amicus Brief Click to open Miles Motion Click to open Miles Brief Click to open Goverment Brief Click to open Defense Response

Consent_Counts

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Legal Case

]]>CC LegalWed, 26 Mar 2014 15:11:01 +0000COMMONWEALTH vs. JOHN CAREYhttps://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/699-commonwealth-vs-john-carey.html
https://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/699-commonwealth-vs-john-carey.htmlIndictments found and returned in the Superior Court Department on July 23, 2007. The cases were tried before Richard E. Welch, III, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. James L. Sultan for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. CORDY, J. Based on an assault that occurred during the evening of June 6, 2007, at a home in Hamilton, a jury in the Superior Court convicted the defendant of attempted murder in violation of G. L. c. 265, § 16; armed home invasion in violation of G. L. c. 265, § 18C; assault and battery by means of a dangerous weapon in violation of G. L. c. 265, § 15A (b); and assault and battery in violation of G. L. c. 265, § 13A.(1) A divided panel of the Appeals Court affirmed the convictions, Commonwealth v. Carey, 79 Mass. App. Ct. 587 (2011), and we granted the defendant's application for further appellate review. On appeal, the defendant contends that the assault constituted a consensual sexual encounter. He thus argues that, in light of the decision of the United States Supreme Court in Lawrence v.…

Consent_Counts

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]]>CC LegalWed, 19 Sep 2012 16:22:22 +0000Rhode Island v Gasperhttps://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/686-rhode-island-v-gasper.html
https://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/686-rhode-island-v-gasper.htmlA recent Rhode Island decision, State v. Gaspar, reversed a BDSM assault conviction on evidentiary grounds that related in part to the issue of consent. While the court did not discuss the issue of consent with any specificity, the decision contains the following assessment of the central issue in the case: The evidence adduced at the trial of this criminal case included testimony concerning a multitude of unconventional sexual practices but ultimately presented only one question for the jury's determination: did the events of the night in question constitute a mutually consensual sexual encounter between two adults or a brutal sexual assault? State v. Gaspar 982 A.2d 140, 141 (R.I.,2009) Click to open Rhode Island V Gasper PDF]]>CC LegalMon, 20 Feb 2012 02:32:32 +0000Govan v Indianahttps://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/685-govan-v-indiana.html
https://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/685-govan-v-indiana.htmlIn Govan v. State, 913 N.E.2d.237 (Indiana Appeals Court 2009), the defendant (Govan) was convicted of both assault and battery, based on a BDSM incident in which he “punished” the victim (A.H.) by branding her with a hot knife and whipping her with an electrical extension cord. The appellate court rejected Govan’s argument that A.H.’s consent was a defense to his conduct. First, it ruled that consent could not be a defense to the assault charge. Second, although the court acknowledged that consent was a valid defense in a battery case having “sexual overtones”, it found that the use by Govan of a knife invalidated the defense: Turning to the case at hand it is undisputed that it involves sexual overtones. Notwithstanding those overtones, A.H.’s consent is not a defense to the crime because Govan’s actions involved a deadly weapon,...namely a knife, and therefore A.H.’s consent is not available as a defense to battery. Govan, 913 N.E.2d at 242-243. Click to open Govan v Indiana PDF]]>CC LegalMon, 20 Feb 2012 02:28:59 +0000California v Febrissyhttps://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/684-california-v-febrissy.html
https://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/684-california-v-febrissy.htmlIn this case, the defendant’s lawyer sought to invoke the doctrine enunciated by the Supreme Court in Lawrence v. Texas, which held (in a sodomy prosecution) that, absent a compelling societal interest (and moral disapproval is not such an interest), the government cannot make private consensual sexual activity a crime. That argument was rejected. Click to open California v Febrissy PDF]]>CC LegalMon, 20 Feb 2012 02:26:06 +0000 Nebraska v Vanhttps://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/683-nebraska-v-van.html
https://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/683-nebraska-v-van.htmlAn argument based on Lawrence v. Texas was rejected in the Nebraska case of State v. Van, 268 Neb.814 (2004). Van was convicted of first-degree assault on the basis of an extended imprisonment and extremely intense BDSM/torture of a gay male submissive. The submissive initially consented to practices that were quite intense, but the evidence was in conflict as to whether he later withdrew that consent. On appeal, defendant Van argued that this was a case of “two adults who, with complete and mutual consent, engaged in sexual practices common to their homosexual, BDSM lifestyle” and as such was protected under Lawrence v. Texas. Rejecting that argument, the court made three points. First, it noted that the Lawrence opinion contained a phrase that its doctrine only applies “absent injury to a person”. Second, the court emphasized that the evidence on the issue of consent was not clear-cut. Finally, and most fundamentally, the court held—citing the other decisions discussed in this paper—that consent is not a defense to a charge of assault: Our statutes defining first and second degree assault include no reference to consent…This court has held that “all attempts to do physical violence which amount to a statutory assault…]]>CC LegalMon, 20 Feb 2012 02:14:17 +0000Lawrence v Texashttps://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/682-lawrence-v-texas.html
https://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/682-lawrence-v-texas.htmlLawrence v. Texas, a landmark U.S. Supreme Court case for privacy and sexual freedom rights, held (in a sodomy prosecution) that, absent a compelling societal interest (and moral disapproval is not such an interest), the government cannot make private consensual sexual activity a crime. Attempts to argue Lawrence in appellate cases related to BDSM have been unsuccessful to date. Click to open Lawrence v Texas PDF]]>CC LegalMon, 20 Feb 2012 02:11:18 +0000New York v Jovanovichttps://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/681-new-york-v-jovanovic.html
https://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/681-new-york-v-jovanovic.htmlPeople v. Jovanovic was a New York case involving an intense scene between a man and a woman who had previously engaged in extensive Internet discussion of their BDSM interests. The scene apparently went bad, and the woman went to the police. Mr. Jovanovic was tried and convicted of assault, sexual assault and kidnapping and spent 20 months in prison. Email correspondence regarding their pre-negotiations was excluded under the rape shield laws. The Court of Appeals, although it reversed the convictions on evidentiary grounds, very explicitly stated in a footnote that consent, while available as a defense to the charges of kidnapping and sexual assault, was irrelevant to the assault charge: There is no available defense of consent on a charge of assault under Penal Law §§ 120.00[1] and 120.05[2] (contrast, Penal Law § 120.05[5] [where lack of consent is an element]). Indeed, while a meaningful distinction can be made between an ordinary violent beating and violence in which both parties voluntarily participate for their own sexual gratification, nevertheless, just as a person cannot consent to his or her own murder (see, People v. Duffy, 79 N.Y.2d 611, 584 N.Y.S.2d 739, 595 N.E.2d 814), as a matter of public policy,…]]>CC LegalMon, 20 Feb 2012 01:28:16 +0000 Helton v Indianahttps://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/680-helton-v-indiana.html
https://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/680-helton-v-indiana.htmlSome cases arising from BDSM incidents have been prosecuted under the criminal charge of battery. Battery, unlike assault, does not necessarily involve an attack by one person against another. The crime of battery is injurious touching or striking of one person by another. Thus, in battery cases, there is an issue as to the context in which the injurious touching or striking occurred. As the Court of Appeals of Indiana stated in Helton v. State, 624N.E.2d499(1993) at 514, n.22: Consent is connected with the harm or evil sought to be prevented; therefore, if the victim consents to the defendant’s touching, that touching is not rude or insolent and should not be considered unlawful unless it meets one of the exceptions to the general rule. The exceptions to the general rule (in Indiana) that consent is a defense to battery, and specifically is a defense available in cases “involving sexual overtones”, are as follows: (1) Where the defendant goes beyond acts consented to; (2) Where it is against public policy to permit the conduct or resulting harm even though it is consented to, as, as where there are no sexual overtones and the battery is a severe one which involves a…]]>CC LegalMon, 20 Feb 2012 01:16:21 +0000Iowa v Collierhttps://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/679-iowa-v-collier.html
https://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/679-iowa-v-collier.htmlIn Iowa v. Collier, there were wildly differing accounts given of a BDSM incident, but the judge refused to let the jury consider the question of consent. The Appellate Court upheld the conviction and ruled that consent was not a defense. Significantly, the Iowa law on assault was in most ways similar to the Model Penal Code. Provided, that where the person doing any of the above enumerated acts, and such other person, are voluntary participants in a sport, social or other activity, not in itself criminal, and such act is a reasonably foreseeable incident of such sport or activity, and does not create an unreasonable risk of serious injury or breach of the peace, the act shall not be an assault. I.C.A. § 708.1 The court’s moralistic tone in rejecting the consent defense is a good illustration of the type of thinking that seems to underly most judges’ handling of BDSM assault cases: The foregoing discussion compels us to conclude that, in the present case, the legislature did not intend sadomasochistic activity to be a "sport, social or other activity" under section 708.1. We are hesitant to give a precise definition of this term and believe it is more…]]>CC LegalMon, 20 Feb 2012 01:10:25 +0000 Massachusetts v Applebyhttps://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/678-massachusetts-v-appleby.html
https://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/678-massachusetts-v-appleby.htmlIn most BDSM assault cases, the testimony of a complaining witness (the injured person) is central to the case, and often there is conflict on the issue of consent between the defendant and the complaining witness. However, even where both participants agree that the acts in question were consensual, the courts have held that consent cannot be a defense. Thus, in Commonwealth v. Appleby, a 1980 Massachusetts case, the court said: “Grimm’s consent to assault and battery upon him by Appleby by means of a dangerous weapon cannot absolve Appleby of the crime…”Commonwealth v. Appleby, 380 Mass.296, 311, 402N.E.2d 1051,1061 (Mass. 1980). Click to open Massachusetts v Appleby PDF

Consent_Counts

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Legal Case

]]>CC LegalMon, 20 Feb 2012 00:47:00 +0000California v Samuelshttps://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/677-california-v-samuels.html
https://ncsfreedom.org/key-programs/education-outreach/eo-mission-statement/item/677-california-v-samuels.htmlAn early, and typically bad, example of a pure “consent is no defense” ruling is People v Samuels, a 1967 California decision. In that case, Martin Samuels was convicted of assault based on his conduct in a film of an apparently consensual BDSM scene. The court not only rejected the consent defense, but also appeared to hold the view that any such consent would be “some form of mental aberration”: Even if it be assumed that the victim in the ‘vertical’ film did in fact suffer from some form of mental aberration which compelled him to submit to a beating which was so severe as to constitute an aggravated assault, defendant's conduct in inflicting that beating was no less violative of a penal statute obviously designed to prohibit one human being from severely or mortally injuring another.People v. Samuels 250 Cal.App.2d 501, 514, 58 Cal.Rptr. 439, 447 (Cal.App. 1967) The Samuels decision was cited as recently as 2006, in People v Febrissy. Click to open California v Samuels PDF